Brown v. Socialist Workers', 458 U.S. 87 (1982)
Commentary by Jon Roland
This case represents a significant further erosion of the bad precedent set
in Buckley v. Valeo, 424 U.S. 1 (1976), which left open a defense against
disclosure -- evidence that the party required to disclosure confronts a
significant risk of harassment of itself or its supporters. The holding in
this case was that the Socialist Workers' Party had a history of being
harassed, and that, being a minor party, its First Amendment rights of
nondisclosure outweighed the interests of the people in obtaining disclosure
that might inhibit corruption.
This case has several significant implications. First, it would relieve any
minor party of disclosure requirements, because any of them could be subject
to harassment. However, second, by treating minor parties differently than
major parties, the statute would be in conflict with the constitutional
requirement of equal protection of the law. Furthermore, it can be shown by
evidence that in situations where one of the major parties has an advantage
in holding key positions in government or private enterprise, it is likely
that supporters of the opposing major party, if they can be identified as
such, as disclosure of their support would do, would be subject to
discrimination in hiring, promotion, or contracting. Therefore, third, the
disclosure requirements are unconstitutional for major parties and persons
or committees affiliated with them as well, and therefore are
unconstitutional for anyone.
In none of these cases has there been evidence offered in support of the
theory that disclosure inhibits corruption or facilitates the detection of
it. The theory has been accepted by legislatures and the courts as
plausible, but the only evidence that anyone can offer as to how such
disclosures are actually used by anyone are for harvesting lists of
potential donors to solicit and for harassment of supporters of opposing
candidates or policies. The hope that ordinary voters would be informed by
such disclosures in the way they cast their votes has not been realized.
Voters don't read disclosure reports. Only political insiders do, and they
tend to use the information less to fight corruption than to find
opportunities for it.
Political reformers who supported campaign disclosure statutes should have
been more suspicious when they got support from elected officials for the
adoption of disclosure legislation. As usual, the reform that seems most
simple and direct turns out to have the opposite effect from that which was
intended.
The precedent in Buckley was further eroded in McIntyre v. Ohio Elections
Comm'n, 514 U.S. 334 (1995).